The vast majority of times someone claims their First Amendment rights were violated on social media it is correctly pointed out that the First Amendment doesn’t usually apply. Platforms like Facebook and Twitter and others aren’t subjected to the same limitations as the government–the First Amendment covers government, not private, action. We’ve seen instances where Facebook removes posts or pictures and someone cries “First Amendment!” and someone else (maybe me) says “Nope.” There are some interesting theories on why the First Amendment might apply to broad platforms such as Facebook. But for now the more mainstream view is that the First Amendment doesn’t apply to platforms.

But the First Amendment does apply to government, including the President. And as the letter spells out, the President’s decision to block certain users on Twitter could face legal challenges. This is because blocking a user on Twitter does more than just hide that user’s tweets–it also stops that user from seeing the blocking account’s tweets or searching for them.

If blocking an account on Twitter only allowed blocker to not see the content, the analysis might be simpler. The President can, for example, cancel his subscription to a newspaper he doesn’t like. But blocking a user does more than that–it actually prevents that user from seeing the content in the first place.

Granted, there are workarounds. You can create another Twitter account. You can log out of your existing account on Twitter and just use a web browser to see public (like the President’s) posts. But that kind of analysis doesn’t defeat the initial issue of government censorship. If the government stops one person from speaking, does it matter that others can say the same thing? Yes, the message gets out, but that one person has had their rights violated.

This is a novel approach to a common social media function, no doubt due to the new and often tumultuous political/social media world we live in today. Will it force the President to unblock accounts? Will it compel Twitter to create a new function that silences tweets without blocking the user? Bear in mind that back in 2013, Twitter changed the block feature to allow blocked users to see posts from people who blocked them. After public outcry, largely from people who claimed they blocked users for harassment and didn’t want their harassers to continue to see their content, Twitter quickly reversed that change.

Will this latest issue force a politician or a platform to change? Stay tuned.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.